Copyright laws for selling homemade clothes?

September 20, 2006 10:47 PM

If I make a piece of clothing from a store-bought sewing pattern and then sell the clothing, aren't I breaking some sort of copyright law? Likewise, if I buy a patterned fabric for my clothing and sell the clothing, are any laws broken because the fabric pattern was designed by someone else?
posted by foxinthesnow to clothing, beauty, & fashion (13 answers total)

Sewing patterns are a weird case in copyright law. Basically, when you buy a pattern, you are technically buying a license to make one of the item the pattern is for. You are, in theory, supposed to buy additional copies of the pattern if you make additional pieces. But only the pattern is subject to copyright. The item of clothing made from it is not. The only exception is if the clothing is a work of art in its own right, but the law on that one is pretty murky.

With patterned fabric, you're definitely okay as long as you buy all of the fabric you're using rather than trying to make your own fabric in the same pattern. You own the fabric, so you're allowed to sell it to someone else, and if they want to buy it from you all cut up and sewn back together in a dress shape, instead of in a nice, neat roll the way you bought it, that's between you and them. Think about it this way; books are copyrighted, but if you wrote in the margins of your copy of a book and tore out some of the pages, you'd still be allowed to sell the finished product. Altering your copy of a copyrighted work does not make it illegal to sell.

IANAL, IANASeamstress
posted by Amy Phillips at 11:00 PM on September 20, 2006

Oh, there also may be issues if there's a trademarked image involved. For example, if you bought a bunch of leather printed with the Louis Vuitton logo, made handbags out of them, and then sold the handbags, you'd be guilty of trademark infringement.
posted by Amy Phillips at 11:02 PM on September 20, 2006

Actually, I think you might be wrong on the patterned fabric, Amy. My Mom recently made me a quilt using commercially-printed Star Wars fabric. Apparently the fabric actually came with a license agreement that stated that she wasn't allowed to make something and then resell it. We've discussed this issue somewhere on MeFi before with regards to decoupage. I'm trying to find the discussion now...
posted by web-goddess at 11:50 PM on September 20, 2006

I found it! Here it is. The relevant bit of information someone gave me:

web-goddess, to clarify: you could certainly resell the fabric itself. Nothing wrong with that. But when you make something -- e.g., a quilt -- out of the fabric, you've (likely) made a derivative work. The right to make and sell derivative works rests solely with the holder of the copyright in the original work.

posted by web-goddess at 11:52 PM on September 20, 2006

I don't think it's always as clear cut as that. I know there are issues around, for example, using Amy Butler's fabrics to make items to sell. In reality, no fabric designer is really going to care too much if you sell a couple of items at a local craft fair, but if you're making, say, bags with a particular fabric designer's fabric, they may have licensing fees.

It's worth checking with the manufacturer or designer.
posted by girlgeeknz at 12:03 AM on September 21, 2006

Most sewing patterns will have a note somewhere saying "not for commercial use." It's a no-no to make up a bunch of, say, Simplicity dresses for sale.

Fabric varies; as mentioned, Amy Butler recently changed her previous have-at-it policy to a more restricted licensing policy. It may still be possible to get permission to sell products using her fabric, but you'd need to jump through some hoops.

If you're buying yardage from the fabric store, there is usually information about the maker, and if you're lucky, contact information, printed along the selvedge. If in doubt, it's probably a good idea to contact the company.
posted by hilatron at 4:58 AM on September 21, 2006

I do remember discussions in fashion magazines and other places about this law. You should be able to find some kind of statement on the patterns that you can buy from Fabric shops or even in the catalogs of patterns that are made available.

If you buy a dress or clothing pattern and use it to make clothes and then sel lthem, you are breaking copyright on those patterns. You are buying a license to use that pattern for personal use. The same goes for wood patterns or any other plans you buy. They are for personal use only. You technically can't sell designs you've bought from another source. I know there are some copyright free designs out there that you can use to creat items to sell.

This rule also goes for quilt patterns. Most are generic enough or even so old that there is no copyright on them, but there are a few designs that are copyrighted by the creator. Not that I know of too many quiltmakers suing each other over IP debates, but this is somethign to keep in mind when developing a quilt.

For patterned fabric, as long as you are using it in a transformative manner, there's no issue. You can make a quilt from the fabric if you mix it up with other fabrics. What you can not do is create a product meant to showcase only that fabric (purse with only one set fabric, quilt/ sheet set of only copyrighted fabric). Of course you can't really stop copyright owners from suing if they wanted to. They ar erequired by law to protect their brand or lose it.
posted by rodz at 6:31 AM on September 21, 2006

rodz writes "They ar erequired by law to protect their brand or lose it."

No they aren't, only trademarks must be actively protected.
posted by Mitheral at 6:55 AM on September 21, 2006

I'm a little confused by the answers here. Per my understanding, designs of clothing are not protected by copyright. So making clothing from a commercial pattern should be fine. Likewise, the designs of fabrics are not generally protected by copyright.

Copyright law distinguishes between creative works that are functional or utilitarian and ones that are simply expressive works. Patent law is intended to protect the utilitarian works; copyright law the works of expression. Clothing design is considered utilitarian. (There has been some movement recently to protect clothing design, but legislation has not yet been enacted.) It's thus traditionally unprotected. Contrast costumes, which can in some circumstances be protected. There's a good discussion of some of these issues here by Bill Patry, probably the leading copyright lawyer in the country.

Now, printed fabrics are perhaps a more interesting story. The historical rule was that the design of the fabric was one of the things that inherently gave the fabric utilitarian use, and so that design could not be protected. (Ie, when you buy fabric, one of the uses you aim to get out of it is to look a certain way.) That rule has changed in the last few decades, to the point where courts will generally recognize a copyright in a fabric design if that design is sufficiently original. And even then the copyright protection over the design goes only to the expression in that design, not to the idea of the design itself. Overall it's hard to establish infringement of a copyright in a fabric unless you, say, wholesale copy another fabric company's print and sell your own. A good case discussing some of this is Folio Impressions, Inc. v. Byer California, 937 F.2d 759 (2d Cir. 1991).

But infringement of the copyright in the fabric doesn't come from using that fabric in a work; it comes from copying that fabric and selling your own. The only possible method of infringement in making something from a copyrighted fabric is in making a derivative work, and in the normal case where you buy a commercially sold fabric, I am confident a court would find an implied license to sell a resulting derivative work. But that implied license can be unimplied — I guess this is why companies have started including licensing agreements. If there's an indisputably protected element of the design, like the incorporation of a copyrighted character, then the copyright to that character would definitely carry through to the produced clothing, and if the company doesn't expressly remove any implied license, they could be giving up some rights to that character.

So in general I would say (1) you can't get in trouble for using patterns to make clothing, unless those patterns have a design patent or similar; and (2) you can't get in trouble for using patterned cloth to make clothing, unless that cloth is very distinctive and the seller makes clear you can't sell resulting products.

(I am a lawyer who has practiced copyright law, but I am probably not licensed in your jurisdiction, and I do not represent you. Do not rely on any of this. Consult competent counsel.)
posted by raf at 6:57 AM on September 21, 2006

I'm a little confused by the answers here. Per my understanding, designs of clothing are not protected by copyright. So making clothing from a commercial pattern should be fine.

All major pattern companies publish their patterns with a warning such as "for personal, non-commercial use only." I wonder if it is possible that there is a distinction between a clothing design, which a sewer could copy by creating their own pattern, and using the published pattern itself to create commercial goods?

It turns out, however, that we were all wrong about Amy Butler:
Can I use Amy's Fabrics to make projects to sell or use in manufacturing finished goods?
...
1. FOR INDIVIDUAL PEOPLE WHO BUY AMY'S FABRIC AT RETAIL COST (FROM A SHOP OR ONLINE):
You can make items for sale. Since you are buying the fabric at retail, the non-commercial use does not apply to you.

WHY DOES IT SAY "FOR NON-COMMERCIAL USE" ON AMY'S FABRICS?
This only applies to manufacturers. Our goal is to work in conjunction with manufacturers who have entered into a licensing agreement with us. We want to keep the fabrics as exclusive as we can so your designs are unique and fresh!

So only people looking for wholesale prices on Amy Butler fabric need to worry about the non-commercial use clause. (Butler recently announced changes to her licensing policy, and I think this is a revision/clarification of the original announcement, which caused consternation in the crafting world.)
posted by hilatron at 7:27 AM on September 21, 2006

raf: I am confident a court would find an implied license to sell a resulting derivative work. But that implied license can be unimplied — I guess this is why companies have started including licensing agreements.

hilatron: All major pattern companies publish their patterns with a warning such as "for personal, non-commercial use only."

Lots of terms in license agreements turn out to be unenforcable when tested in court. There were cases surrounding used record/tape/CD stores in the 80s, where the producers wanted to stop re-sale of their works. Basically the same issue came along with oem software installed on computers. For years, if you wanted to resell a Dell, the windows license said you couldn't include the software. That has now changed.

FOR INDIVIDUAL PEOPLE WHO BUY AMY'S FABRIC AT RETAIL COST (FROM A SHOP OR ONLINE):
You can make items for sale. Since you are buying the fabric at retail, the non-commercial use does not apply to you.

I wondered if this is 'legal', but on consideration, it doesn't matter. Amy Butler can just stop selling wholesale goods to you, if you don't accept their terms. They can't stop you buying at retail though, hence the answer in their FAQ..
posted by Chuckles at 9:50 AM on September 21, 2006

Note that my statement about an implied license is in the case of making a derivative work from copyrighted cloth. My entire point is that there is no enforceable copyright in the pattern, so no permission or implied license is needed there.
posted by raf at 1:34 PM on September 21, 2006

You all have been so helpful. Thank you for taking time to answer my questions; I didn't know where to start!
posted by foxinthesnow at 6:51 PM on September 21, 2006